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9.2 - People Smuggling (Basic Offence)

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Overview

  1. The Migration Act 1958 (Cth)[1] contains the following four people smuggling offences, which commenced operation on 1 June 2010:
  2. This topic examines the basic people smuggling offence.

    Elements

  3. The offence of people smuggling has the following 5 elements:
    1. The accused organised or facilitated the bringing or coming to Australia of a second person, or the entry or proposed entry of a second person into Australia;
    2. The accused did so intentionally;
    3. The second person was a non-citizen;
    4. The second person had no lawful right to come to Australia;
    5. The accused was reckless about the second person’s lack of a lawful right of entry (Migration Act 1958 s233A).
  4. Section 233A creates one offence which may be committed in a number of different ways. It does not create a number of separate offences (R v Ahmad (2012) 31 NTLR 38).

    Organising or facilitating entry to Australia

  5. The first element the prosecution must prove is that the accused organised or facilitated:
  6. "Australia" is defined to include the coastal sea of Australia, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but not any other external Territory (Acts Interpretation Act 1901 s2B, 15B).
  7. This is a physical element which consists of "conduct" (PJ v R (2012) 36 VR 402; Criminal Code Act 1995 s4.1(a)).[2]
  8. The words "organise" and "facilitate" carry their ordinary meanings:
  9. The words "organise" and "facilitate" are active verbs, describing conduct directed at producing a result or outcome. They require the accused’s conduct to have been directed at the purpose of bringing about the arrival of the relevant passengers at, or their entry into, Australia (PJ v R (2012) 36 VR 402).
  10. This element is not met simply because the accused provided food, accommodation, medical or other humanitarian assistance to refugees or asylum seekers, if that conduct was not connected with organising or facilitating entry to Australia (Ahmadi v R [2011] WASCA 237).
  11. The expression "coming to Australia" refers to the journey to Australia, rather than the actual entry into Australia (R v Ahmad (2012) 31 NTLR 38).
  12. This element is completed once the relevant act of organisation or facilitation has occurred. The journey to Australia does not need to have been undertaken, and the second person does not need to have arrived at or entered Australian territory (R v Ahmad (2012) 31 NTLR 38; R v Mahendra [2011] NTSC 57).[3]

    Intentionally organising or facilitating entry

  13. The second element the prosecution must prove is that the accused intentionally organised or facilitated the bringing or coming to Australia of a second person, or their entry or proposed entry into Australia (PJ v R (2012) 36 VR 402; Bahar v R (2011) 45 WAR 100; Criminal Code Act 1995 s5.6(1)).
  14. A person "intends" to engage in conduct if he or she means to engage in that conduct (Criminal Code Act 1995 s5.2(1)).
  15. For this element to be met, the accused must have been aware of the purpose and destination of the voyage (Bahar v R (2011) 45 WAR 100).
  16. This requires the prosecution to prove that the accused intended to organise or facilitate entry to a place known to the accused as Australia. It is not enough to show that he or she intended to organise or facilitate entry to a place that the law defines to be Australia (PJ v R (2012) 36 VR 402; Bahar v R (2011) 45 WAR 100).
  17. The relevant point in time to examine the accused’s intention is the moment when he or she engaged in the relevant conduct (Bahar v R (2011) 45 WAR 100).
  18. Thus, if it is alleged that the accused facilitated entry to Australia by conduct performed during the voyage to Australia, the prosecution must prove that he or she intended to facilitate entry when he or she committed the relevant conduct. They do not need to prove that the accused intended to facilitate entry at the time he or she boarded the vessel (Bahar v R (2011) 45 WAR 100).

    The second person is a non-citizen

  19. The third element the prosecution must prove is that the second person is a non-citizen (Migration Act 1958 s233A).
  20. A non-citizen is defined as a person who is not an Australian citizen (Migration Act 1958 s5).
  21. This is an element of absolute liability (Migration Act 1958 s233A(2)). Consequently:

    No lawful right of entry

  22. The fourth element the prosecution must prove is that the second person had no lawful right to come to Australia (Migration Act 1958 s233A).
  23. This is a physical element which consists of a "circumstance in which conduct … occurs" (PJ v R (2012) 36 VR 402; Criminal Code Act 1995 s4.1(c)).[4]
  24. A non-citizen has no lawful right to come to Australia if he or she:
  25. A person who fails to meet these entry requirements has no lawful right to come to Australia, even if he or she is seeking protection or asylum. This is the case regardless of any protection obligations Australia owes non-citizens under the Refugees Convention or for any other reason (Migration Act 1958 s228B(2); R v Baco (2011) 29 NTLR 221; SZ v Minister for Immigration and Cultural Affairs (2000) 101 FCR 342).[6]

    Recklessness about the lack of lawful right of entry

  26. The fifth element the prosecution must prove is that the accused was reckless about the second person’s lack of lawful right to come to Australia (Criminal Code Act 1995 s5.6; PJ v R (2012) 36 VR 402).
  27. This requires the prosecution to prove that the accused:
  28. Proof of intention or knowledge is also sufficient to prove this element (Criminal Code Act 1995 s5.4(4)).
  29. A person will have intention in relation to this element if he or she believes that the second person has no lawful right to come to Australia (Criminal Code Act 1995 s5.2).
  30. A person will have knowledge in relation to this element if he or she is aware that the second person has no lawful right to come to Australia (Criminal Code Act 1995 s5.3)
  31. It is not sufficient to show that the accused was reckless about the second person’s right to enter their ultimate destination (which happened to be Australia). The element requires proof that the accused turned his or her mind to the risk that the second person had no lawful right to enter a place known to the accused as Australia, and decided (unjustifiably) to take the risk (PJ v R (2012) 36 VR 402).
  32. It is for the jury to determine whether or not it was unjustifiable to take the risk (Criminal Code Act 1995 s5.4(3)). This requires them to make a moral or value judgment concerning the accused’s advertent disregard of the risk (R v Saengsai-Or (2004) 61 NSWLR 135).
  33. The jury must assess the likelihood of the risk eventuating, and determine whether the risk is one which should have been taken (Lustig v R [2009] NSWCCA 143).
  34. The unjustifiability of the risk must be assessed on the facts as the accused perceived them (Criminal Code Act 1995 s5.4(1)(b)). However, the accused does not need to have believed that it was unjustifiable to take the risk. The test is objective not subjective.

    Defences

  35. Section 4A of the Migration Act 1958 states that Chapter 2 of the Criminal Code Act 1995 applies to all offences against that Act.[7] Consequently, any of the defences set out in Part 2.3 of the Criminal Code Act 1958 may be relevant to a charge of people smuggling.
  36. One commonly raised defence is sudden or extraordinary emergency (see, e.g., Warnakulasuriya v R [2012] WASCA 10; Tran v The Commonwealth (2010) 187 FCR 54). See Sudden or Extraordinary Emergency (Topic Not Yet Complete) for information concerning the scope of this defence.

    Extra-Territoriality

  37. Section 233A operates extra-territorially. The offence may be complete before the other person arrives at or enters Australian territory (Migration Act 1958 s228A; R v Ahmad (2012) 31 NTLR 38; R v Mahendra [2011] NTSC 57).

     

    Notes

[1] Unless otherwise stated, all references to legislation are to Commonwealth legislation.

[2] Consequently, the appropriate fault element is intention: Criminal Code Act 1995 s5.6(1). See the discussion of the second element below for further information.

[3] While successful entry into Australia is not an element of the crime, it may be relevant to sentencing: R v Ahmad (2012) 31 NTLR 38.

[4] Consequently, the appropriate fault element is recklessness: Criminal Code Act 1995 s5.6(2). See the discussion of the fifth element below for further information.

[5] This section was amended by the Anti-People Smuggling and Other Measures Act 2010, which commenced operation on 1 June 2010.

[6] This section was added by the Deterring People Smuggling Act 2011. It has retrospective operation, and is taken to have commenced operation on 16 December 1999.

[7] This section commenced operation on 19 September 2001.

Last updated: 18 September 2013

In This Section

9.2.1 - Charge: People Smuggling (Basic Offence)

9.2.2 - Checklist: People Smuggling (Basic Offence)

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings